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Petitioner: THE SARGODHA-BHERA BUS SERVICE VS Respondent: THE REGIONAL TRANSPORT AUTHORITY. LAHORE,
P L D 1958 (W
P L D 1958 (W. P.) Lahore 269
Before S. A. Rahman, C. J. and Muhammad Yaqoob Ali, J
THE SARGODHA‑BHERA BUS SERVICE‑-Petitioners
Versus
(1) THE REGIONAL TRANSPORT AUTHORITY. LAHORE, (2) THE TARIQ TRANSPORT CO., LAHORE, (3) PROVINCIAL TRANSPORT AUTHORITY, LAHORE and (4) M. G. CHEEMA EX‑SECRETARY. REGIONAL TRANSPORT AUTHORITY, LAHORE -‑Respondents
Writ Petition No. 815 of 1957, decided on 14th January 1958, under Article 170 of the Constitution of Pakistan.
(a) Motor Vehicles Act (IV of 1939),
S. 57 (3)‑Application for route permit not published before meeting of Authority‑Cannot be legally considered at meeting.
(b) Motor Vehicles Act (1V of 1939),
S. 57 (5)‑Appli cants and objectors in respect of same route must be heard in the presence of one another at public hearing.
(c) Motor Vehicles Act (IV of 1939),
S. 57 (3)‑Reasons underlying refusal of application to be stated‑Decision of Authority of quasi judicial character‑Constitution of Pakistan, Art. 12‑Decisions without reasons void. A decision by a Regional Transport Authority to refuse or grant permits of any kind affects the fundamental rights granted to every citizen of Pakistan under Article 12 of the Constitution to enter upon any lawful profession or occupation and conduct any lawful trade or business, subject to regulation by a licensing system. A decision in this matter is, therefore, of quasi‑judicial nature and must be arrived at not on 'subjective', 'personal' or 'private' opinion but should conform to an objective standard or criterion laid down or recognised by law and the, soundness or otherwise of the determination must be capable of being tested by the same external standard.
The grant of permits under the Motor Vehicles Act (IV of 1939), is not a bounty or gift from the Transport Authority. Under section 57 (3) of the Act refusal of an application for a route permit must be supported by reasons.
Decisions taken by Authority in contravention of section 57 (3) of the Act are unwarranted by law and void ab initio.
(d) Motor Vehicles Rules,
r. 4.4 (8)‑Member of Authority not present at hearing of applications participating in decisions thereof‑Decisions vitiated. (e) Motor Vehicles Act (IV of 1939), Ss. 47 (1) & 57 S. 47 (1) makes it mandatory to hear objections of persons already providing facilities on route irrespective of S. 57.
Whereas section 57 confers a general right on every Person to object to the giant of stage carriage permits provided he had submitted representations within the specified period. section 47 makes it mandatory on the Authority to hear objections by persons who are already providing road transport facilities along or near the proposed route or routes irrespective of the fact, whether such persons have separately made representations under section 57 or not.
(f) Motor Vehicles Rules,
r. 4.8 (2)‑Modification of route-‑Publication of notice necessary.
While rule 4.8 (2) entitles the Authority to modify a route, it does not override the provisions of sections 47 (1) and 57 (3) of the Act and notice of the proposed modified route should be given by the Authority as in the case of a new application under section 57 (3) of the Motor Vehicles Act, 1939.
(g) Motor Vehicles Act (IV of 1939),
S. 63‑Act envisages issue of inter‑regional route permits‑Direction of Pro vincial Transport Controller against issue of such permits, illegal.
Abdul Haq, Ghulam Mohy‑ud‑Din, S. M. Iqbal and S. M. Zafar for Petitioners.
Sh. Bashir Ahmad and Qureshi Mahmood Ahmad for Respondent No. 2.
Jamil Hussain Rizvi for M. G. Cheema, Ex‑Secretary, R. T. A., Lahore.
Sadiq Ali, Secretary R. T. A. in person.
Sharif Khan, Chairman R. T. A. in person.
Manzoor Qadir for Chairman R. T. A. Lahore.
Dates of hearing: 14th and 19th to 22nd November 1957.
JUDGMENT
YAQUB ALI, J.‑This older will dispose of Writ Petition No. 815 of 1957, by the Sargodha‑Bhera Bus Service, through its General Manager Sheikh Muhammad Iqbal Piracha and, Writ Petition No. 923, by the Diamond Transport Company, Lahore, through its Managing Partner, Mustri Rafique Ahmad. The two petitions proceed on different grounds and seek different reliefs, but the order, which we propose to deliver in the former petition, also concludes the dispute in the latter.
2. The material facts are that the Regional Transport Authority, Lahore, (hereinafter referred to as the Authority) held a meeting on the 27th, 28th and 29th of May 1957, at which, among other business included in the agenda, appli cations for issue of stage carriage permits were to be considered at item No. 17. There were nearly 700 applicants for such permits belonging to ten separate districts and the total number of routes for which they had applied exceeded three thousand. The agenda for consideration of their appli cations was drawn up district‑wise instead of route‑wise and, as will be seen presently, this departure from the normal practice rendered the entire proceedings of the Authority in relation to grant of stage carriage permits, void and illegal.
3. The meeting which started under the chairmanship of Mr. Allah Dad (Commissioner, Lahore Division), was attended by Syed Inayat Ali Shah, Deputy Inspector‑General of Police, Lahore Circle, as official members and Makhdum Nazar Hussain, Khan Muhammad Arif Khan and Khan Barkhurdar Khan, as non‑official members. Before item No. 17 was reached, Mr. Allah Dad left the meeting to attend the Commissioners' conference which was being held simultaneously in Lahore and nominated Syed Inayat Ali Shah to act as chairman in his place. The procedure adopted for considering the applications for grant of stage carriage permits, as recorded in the minutes prepared by Mr. Muhammad Ghani Cheema, Secretary, who had been in attendance throughout the meeting, was that at first applicants from each one of the ten districts were called and heard in person or through their representatives. After the applicants were heard in the first instance for two days, the objectors were called in on the afternoon of the 28th to represent their cases. (The number of the objectors mentioned in the minutes, who were heard, is 23 including representatives of the Punjab Road Transport Board and the North Western Railway). After the objections had been heard, the Authority again met on the 29th in the office of Mr. Allah Dad to finalise their decision on the applications and objections. Mr. Allah Dad did not join in the deliberations at first but later on, when the remaining members could not come to any decision, their differences were put before him and he succeeded in resolving them. The nature of the differences between the remaining members and the manner in which Mr. Allah Dad resolved them, will be indicated later on at the appropriate stage. The upshot of these deliberations was that 150 stage carriage permits were granted to various, applicants, including four permits to Tariq Transport Company (respondent No. 2 in Writ Petition No. 815 of 1957), on the Sargodha‑Bhera route and one permit to Diamond Transport Company (petitioners in Writ Petition No. 923 of 1957) on the Lahore‑Rawalpindi route.
4. After the decisions had been arrived at, the result was announced by the Secretary to a large number of applicants and objectors who were waiting outside the office of the Commissioner. Some press representatives were also present who rioted down the names of the grantees of the permits and the routes, which appeared in the "Driver" and "Rah‑o‑Manzil" (transport papers) on the nest morning and thus became public property.
5. The Sargodha‑Bhera Bus Service (petitioners in Writ Petition No. 815 of 1957), who were the existing operators on the Sargodha‑Bhera route, had objected to the grant of any new permits on that route and with a view to file an appeal against the order of the Authority granting four permits to Tariq Transport Company, Sheikh Muhammad Iqbal Piracha, on the 30th of May 1957, applied to the Secretary of the Authority for supplying a copy of the relevant order. The application was formally sanctioned on the same date, but it is admitted that uptill now, the requisite copy has not been supplied. After the submission of the application, Mr. Muhammad Iqbal Piracha and his man called at the office of the Authority on numerous occasions to obtain the copy but without any avail. Eventually, an application for inspection of the record was made but this was also declined. In consequence of it, the Sargodha‑Bhera Bus Service, on the 18th of July 1957, instituted Writ Petition No. 815 of 1957 praying, inter alia, that the record of the Authority, for the meeting held on the 27th 28th and 29th of May 1957, be removed to this Court and a writ of mandamus issued to the Authority not to issue any permit to Tariq Transport Company for the Sargodha‑Bhera route and, in the alternative, to cancel the permits if they had already been issued. A note was appended to the petition that as the petitioners did not have the advantage of inspecting the record of the Authority's impugned proceedings, they reserved to them selves the right to supplement their submissions on receipt of the copy of the proceedings.
6. In Writ Petition No. 923 of 1957, the stage carriage permit granted to the Diamond Transport Company (petitioners) extended beyond the jurisdiction of the Authority. The Provincial Transport Authority, which has a supervisory jurisdiction over Regional Transport Authorities, considered it to be illegal and accordingly res trained the Authority, from issuing the permit. Aggrieved by this, the Diamond Transport Company has applied through its Managing Partner, Mustri Rafique Ahmad, to this Court for issue of a writ quashing the order of the Provincial Transport Authority and directing the Authority to issue .the stage carriage permit already granted to them at the meeting held on the 27th, 28th and 29th of May 1957.
7. Writ Petition No. 815 first came up before our learned brother Kaikaus, J. on the 19th of July 1957, and on hearing the counsel for the petitioners he made the following order:‑
"A special messenger shall go and bring the record of the Lahore Regional Transport Authority to‑day. The Secretary of that Transport Authority, its Chairman and every other person in whose custody the record may be is hereby directed to deliver the record to the special messenger of this Court. Case to come up on Monday, 22nd July."
When the bailiff of this Court went to the office of Authority, the Secretary happened to be at his house but Mr. Ihsan‑ul- Haq Siddiqui (C. W. 1), Head Assistant, informed him of the direction of this Court on telephone and, in the meantime, collected the relevant record. He also prepared an inventory of the record in his custody which did not include the minutes of the impugned meeting and the list of the grantees of the stage carriage permits. After sometime the Secretary, Mr. Muhammad Ghani Cheema, arrived in the office, got a fresh inventory, of the record prepared and out of a basta, which he had brought with him, he is said to have taken out the minutes of the impugned meeting and handed them over to the bailiff but kept back the list of the grantees:
8. It may be mentioned at this stage that before Mr. Muhammad lqbal Piracha instituted Writ Petition No. 815, some anonymous person had sent to him unauthenticated copies of the minutes and sorrie other relevant papers which he handed over to his counsel Mr. Abdul Hague. On the 21st of July 1957, these gentlemen inspected the record of the case and, Mr. Abdul Hague, on comparison with the original document, corrected his copy of the forwarding letter by Mr. Muhammad Ghani Cheema to Mr. Allah Dad sent along with the minutes of the meeting of 27th to 29th of May 1957. The copy corrected in the hand writing of Mr. Abdul Hague is Exh. R. 3, while the original on the record of this Court is alleged to have been later on removed and replaced by Exh. R. 2. Nothing turns upon the alleged removal or replacement of the forwarding letter in question, but since a definite allegation was made by one of the parties about it, we shall, at a later stage, make further comments on this aspect of the case.
9. On the 23rd of July, when the case again came up before Kaikaus, J. a representative of the Authority, who was present in Court, produced before him both the agenda of the impugned meeting and the list of grantees of stage carriage permits. Under what circumstances these documents were brought to Court on the date and why they were withheld on the 19th is again a matter which does not concern the case directly but does lend some support to the allegations made in Writ Petition No. 815 that the record of the Authority's meeting held on the 27th to 29th of May 1957, which is of public nature, was for some reason being kept as a dark secret.
10. After examining the documents produced by the Authority in Court, the petitioners (in Writ Petition No. 815) filed supplementary pleas in which the grant of stage carriage permits to Tariq Transport Company (respondent. No. 2) was challenged, inter alia, on the grounds:‑
"That according to the record prepared, the authority heard firstly the individual applicants for two days and later on called and gave hearing to the objectors. At the time when the applicants presented their cases, the objectors were not allowed to be present. This procedure is in violation of sub‑clause (5) of section 57 which requires that the applicant is to be heard at a public hearing in which the objector shall be given an opportunity to lay down his objections. Unless the objector hears the applicant he naturally cannot be presumed to know the case of other side and so he cannot rebut it. The objector may have many sound facts to state cutting at the root of the case of the other party.
"(b) That in the present case no one even appeared on behalf of Respondent No. 2. According to the agenda the name of Respondent No. 2 appeared at Nos. 166 and 167 of the Lahore District, under Item No. 17, a reference to the record of the proceedings shows that no one had appeared for Nos. 166 and 167.
"(c) That the material available to Respondent No. 1 at the time of meeting (as even now) went to show that Sargodha‑Bhera Route could not accommodate fresh permits and that the same were not needed. But this has been ignored by the authority and contrary has been held, ostensibly on no material. Even the personal knowledge has not been stated to be the basis for that conclusion.
"(d) That the petitioners have been accused of having bribed the establishment of the Punjab Road Transport Board. There is no material in support of it and it has been so held without referring this allegation to the petitioners.'
"(e) That the petitioners were not supplied with any copies of the proceedings. They had applied for it as early as 30th of May 1957. The inspection was also refused to the petitioners. This was done with the motive to keep the petitioners in dark and to enable the respondent No. 2 to get the permits and to start running the buses before the petitioners could seek any redress. The action is mala fide and respondent No. 2 has been given the treatment of favourite."
In the main petition, the legality of the grant of permits to Tariq Transport Company was challenged inter alia, on the grounds:‑
"(i) Under section 57 (3) of the Motor Vehicles Act 1939, no application for the grant of a stage carriage permit can be considered so long as a period of 30 days has not elapsed between the publication of the application and the date of the meeting at which it is to be considered. In the present case the applications for the Sargodha‑Bhera route were published for the first time on the 22nd May 1957 in "The Driver", whereas some other newspapers, namely, "The Rah‑o‑Manzil" and "The Khud‑dar" published the same in their issues dated the 27th May 1957. According to these notices objections were to be put in within 15 days. The applications published as above could therefore not be considered before the 21st of June 1957, in any case. In violation of this rule, the applications were considered from the 27th to 29th May 1957, i.e., even before the period of 15 days allowed for preferring objections had expired.
"(ii) The ground or grounds on which any application is granted and objections thereto turned down, must be disclos ed to the person concerned. In the present case the present petitioners were never apprised of the merits of the case of Respondent No. 2 or the grounds on which permits were granted to them.
(iii) Under directions issued by the Provincial Transport Authority, under section 44 of the Motor Vehicles Act, it was necessary for Respondent No. 1 to conduct a proper survey of the route concerned before taking decision regarding the grant of fresh permits. This directive was wholly ignored evidently because the Respondent No. 1 knew that compliance therewith would force its hands to reject the application of Respondent No. 2 which it had made up its mind to grant irrespective of the merits."
11. On the 17th of September 1957, when Writ Petition No. 815 came up before this bench, Mr. M. Anwar, Assistant Advocate‑General, made a request on behalf of the Provincial Transport Authority that this petition be heard along with Writ Petition No. 923, in which the Provincial Transport Authority was a party because, according to his instructions, there were serious irregularities committed by the Authority on the relevant dates and there were even suggestions of forgery of the records in those dates. In view of these statements by the learned Assistant Advocate‑General, we impleaded the Provincial Transport Authority as a party to Writ Petition No. 815 and ordered that this be heard along with Writ Petition No. 923. The Provincial Transport Authority filed written statements on the 19th of September 1957, in both these petitions in which the aforementioned allegations were further amplified. In view of their serious nature, which reflected on the conduct of the Authority as a whole and of Mr. Muhammad Ghani Cheema, in particular, we permitted the latter to put in a written state ment on his behalf and join the proceedings, although he had already been replaced by Mr. Sadiq Ali Shah. In their written statements, the Tariq Transport Company, the Authority and Mr. Muhammad Ghani Cheema, denied the allegations of numerous illegalities and irregularities made in Writ Petition No. 815 and by the Provincial Transport Authority. It was claimed on their behalf that the pro ceedings of the impugned meeting were conducted strictly in accordance with law and that this Court had no juris diction to interfere with the grant of stage carriage permits, in exercise of writ jurisdiction. The Tariq Transport Company further pleaded that the application of the Tariq Transport Company, 69, The Mall Lahore, which included Sargodha‑Bhera route published in the "Driver" of the 22nd of May 1957 and "Rah‑o‑Manzil" of the 27th of May 1957 was not made by or on their behalf and that they were granted stage carriage permits on Sargodha‑Bhera route by cutting short the Rabwah‑Bhera route for which they had originally applied and which application of theirs had been duly published in the "Driver" of the 24th of October 1956.
12. The respective contentions of the parties gave rise to the following questions for determination:‑
(1) Whether the application of the Tariq Transport Company (respondent No. 2 in Writ Petition No. 815) for the grant of stage carriage permits on Sargodha‑Bhera route was properly considered at the meeting of the Authority held on 27th to 29th of May 1957.
(2) Whether the procedure adopted for the hearing of the application for grant of stage carriage permits including the application of respondent No. 2 was in breach of the provisions of the Motor Vehicles Act or the general principles governing procedure of judicial and quasi‑judicial tribunals.
(3) Whether decisions of these applications were taken in accordance with the provisions of the Motor Vehicles Act (hereinafter referred to as the Act) and the rules framed thereunder or they were based on private opinion of the members of the Authority.
(4) What was the effect of Mr. Allah Dad's participation in the deliberations of the Authority on the 29th of May 1957, while taking decisions on the applications for grant of stage carriage permits, and
(5) Whether the Sargodha‑Bhera Bus Service (petitioners in Writ Petition No. 815) had the locus standi to object to the grant of stage carriage permits to the Tariq Transport Company (respondent No. 2 in Writ Petition No. 815).
Since the position taken up by the Authority on certain material points in the case was contrary to the minutes of the meeting of the 27th to 29th May 1957, and a number of documents summoned by this Court and the petitioners, were not available in the record of the Authority, we con sidered it a fit case to allow the parties to lead evidence in support of their respective contentions.
13. In Writ Petition No. 815, the petitioners examined only one witness, namely, Mr. Aziz Ahmad, Secretary, West Pakistan Transport Federation, in addition to Mr. Muhammad Iqbal Piracha, its General Manager. The Provincial Transport Authority (respondent No. 3), examined Mr. Siraj‑ud‑Din, steno‑typist of the office of the Secretary of the Authority. Mr. Abu Zafar, Additional Inspector‑General of Police, the member of the Provincial Transport Authority, Syed Inayat Ali Shah, Deputy Inspector‑General of Police, C. I. D., Lahore, Mr. Waliullah Khan, Secretary, Provincial Transport Authority and A. I. G., Traffic, Mr. Ghulam Niazi, Inspector of Police and Mr. Iftikhar Ali, District Manager, Lahore Omnibus Service. Mr. Sharif Khan, the Provincial Transport Controller, also appeared in the witness‑box in support of the allegations made against the Authority and was cross- examined by the respondents at length. Respondent No. 2 examined only one of its partners, namely, Mr. Munir Ahmad. The Authority examined Mr. Barkhurdar Khan, Mr. Muhammad Ghani Cheema, and Mr. Allah Dad, a non‑official member, ex‑secretary and Chairman of the Authority respectively. Mr. Ihsan‑ul‑Haq Siddiqui, Head Assistant, Provincial Transport Controller's Office, Mr. Sharif Khan, the Provincial Transport Controller, Mr. Abdul Aziz, the bailiff of this Court, Qazi Abdur Rahman, Assailant in the office of the Authority, Mr. Muhammad Iqbal Piracha, (petitioner in Writ Petition No. 815), and Mr. F. A. Siddiqui, P. A. to Commissioner, Lahore, were examined by us as Court‑witnesses. Besides the oral testimony of the aforesaid witnesses, a large number of documents were exhibited on the record, to which reference will be made hereinafter
14. The evidence led by Sargodha‑Bhera Bus Service (petitioners in Writ Petition No. 815) was intended to make out:‑
(1) That the application of the Tariq Transport Company (respondent No. 2) for grant of stage carriage permits dated 25th September 1956, Exh. P. 2 did not include the Sargodha‑Bhera route and that this route was subsequently included in it by replacing the list of route permits applied for by the said respondent attached to their application.
(2) That as required by section 57 (3) of the Act, no notice of any such application was given and consequently even if this route was included in the application Exh. P. 2, the Authority could not have considered it at its meeting held on the 27th to 29th of May 1957.
(3) That the procedure adopted for consideration of applications for grant of stage carriage permits at the said meeting was in breach of the provisions of the Act and rules framed thereunder inasmuch as the applicants and the objectors were not heard by the Authority in presence of each other.
(4) That certain forgeries were committed in the record of the Authority relating to the impugned meeting, and
(5) That stage carriage permits were not granted on the merits of each case as required by the provisions of section 47 of the Act and that the decision of the Authority in granting such permits was based on private recom mendations of the members of the Authority. In case of respondent No. 2 it was suggested that their case was decided on the basis of favouritism because its Managing Partner, Mr. Munir Ahmad, was the brother of a high officer in the Government of West Pakistan.
15. The evidence led on behalf of the Provincial Transport Authority was directed towards bringing out:‑
(1) Irregularities and illegalities committed by the Authority, at the meeting in question and some earlier meetings in respect of grant of stage carriage, public carrier and motor‑rickshaw permits.
(2) Directions given by the Provincial Transport Authority under section 44 of the Act regarding issue of stage carriage permits were deliberately ignored by the Authority.
(3) That the members of the Authority, granted stage carriage…
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